United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Marilyn J. Horan United States District Judge.
November 26, 2018, Plaintiff Elena Shklyar filed suit against
Defendant, City of Pittsburgh, alleging violations of Title
VII of the Civil Rights Act; the Americans with Disabilities
Act (ADA); the Pennsylvania Human Relations Act (PHRA); and
42 U.S.C. § 1983. (ECF No. 1). The City filed a Motion
to Dismiss for Failure to State a Claim, (ECF No. 9), after
which Ms. Shklyar amended her Complaint, (ECF No. 12). In
response to Ms. Shklyar's Amended Complaint, the City
filed a partial Motion to Dismiss, arguing that the Court
should dismiss Counts II, III, and V in their entirety, as
well as the retaliation claims under Count IV. (ECF No. 16).
Both parties have briefed the issues raised as to the
aforementioned Counts, (ECF Nos. 17, 20, 21, 22), and oral
argument was held before this Court on September 12, 2019.
The Motion is now ripe for decision.
following reasons, the partial Motion to Dismiss will be
to the Amended Complaint, Ms. Shklyar was born in the Soviet
Union, where she received "the equivalent of a
Bachelor's/Master's hybrid degree in accounting and
finance" and "minored in business information
systems" with a focus on computers. (ECF No. 12, at
¶¶ 19, 21). Ms. Shklyar arrived in the United
States in 1989 and obtained U.S. citizenship in 1995.
Id. at ¶¶ 20, 24. Ms. Shklyar speaks
English as her second language. Id. at ¶ 23.
While living in the United States, she completed courses to
supplement her computer skills. Id. at ¶ 22.
The City of Pittsburgh hired Ms. Shklyar in November 1998 and
offered her full-time employment in July 2000, where her
official title within the Department of Innovation and
Performance became Client Application Developer. Id.
at ¶¶ 26, 28, 30.
September 21, 2017, the City informed Ms. Shklyar that on
December 31, 2017, her position as Client Action Developer
would be "eliminated due to lack of work."
Id. at ¶ 39. Lee Haller, Director of the
Department of Innovation and Performance, indicated that it
was his decision to terminate her because he "need[ed]
to have the best staff in place to meet all the
responsibilities on [their] plate." Id. at
¶¶ 90, 91. Ms. Shklyar alleges that six other
employees' positions in other departments were eliminated
as part of the City's fall 2017 reduction. Id.
at ¶ 139. However, of over sixty-five positions in her
department, Ms. Shklyar contends hers was the only position
eliminated, and that her department hired at least
twenty-three new employees after informing her that her
position would be eliminated due to lack of work.
Id. at ¶¶ 83, 85.
the time that Ms. Shklyar was informed that her position
would be eliminated, Ms. Shklyar's supervisor, Heidi
Norman, expressed a preference for a male employee because
"at least [she] can understand him." Id.
at ¶¶ 41, 81, 82. Based on this statement, in
December 2017,  Ms. Shklyar spoke with the mayor's
then-chief of staff, Kevin Acklin, about her fears of being
targeted because of her national origin. Id. at
¶¶ 42, 43. Mr. Acklin informed Ms. Shklyar that she
had no reason to worry. Id. at ¶¶ 43, 44.
However, councilwoman Darlene Harris expressed concern to the
City Council that terminating Ms. Shklyar, a Jewish Refugee,
might expose the City to liability. Id. at ¶
44. Ms. Shklyar also contends that she was not the only
employee to allege discrimination against the City and that
she was targeted for termination due to her supervisor's
discriminatory animus. Id. at ¶ 142.
Shklyar was terminated from the Department of Innovation and
Performance on December 31, 2017, in accordance with the
notice she received three months prior in September 2017.
Id. at ¶ 39. After meeting with the City to
find alternate employment, Ms. Shklyar secured a new position
with the Department of Public Works beginning on January 2,
2018. Id. at ¶¶ 46, 47, 51. Ms. Shklyar
contends she was assured the new position would be in an
office; however, the position required performing inventory
in a warehouse. Id. at ¶¶ 49, 51.
Unfortunately, Ms. Shklyar had an allergic reaction to the
"extraordinary amount of dust" in the warehouse.
Id. at ¶ 53. Her doctor prescribed steroids and
informed her that she could not continue to work in that
environment. Id. at ¶ 54.
January 2, 2018 and February 1, 2018, Ms. Shklyar applied for
another position as a Business Analyst with the City.
Id. at ¶¶ 51, 56, 60. Ms. Shklyar obtained
additional training for this position at the City's
request, and she was notified that she was qualified for the
position. Id. at ¶¶ 57, 73. However, she
was never interviewed for the Business Analyst position.
Id. at ¶ 58. Around the same time, the City
stated that it could not accommodate Ms. Shklyar's
physician's request to move her from the warehouse
because the essential duties of her position required her to
be in the warehouse. Id. at ¶¶ 60, 73. Ms.
Shklyar was terminated from the Department of Public Works on
February 1, 2018. Id. at ¶ 60.
on the foregoing, Ms. Shklyar filed a complaint with the
Equal Employment Opportunity Commission, and upon receiving a
right-to-sue letter, filed the present suit. Id. at
¶ 13. In her Amended Complaint, Ms. Shklyar brings five
Counts. In Count I, Ms. Shklyar alleges a national origin
discrimination claim under Title VII. Id. at
¶¶ 78-101. Next, in Count II, she brings a
disability discrimination claim under the Americans with
Disabilities Act (ADA). Id. at ¶¶ 102-13.
In Count III, Ms. Shklyar alleges retaliation claims under
both Title VII and the ADA. Id. at ¶¶
114-25. Further, in Count IV, Ms. Shklyar brings national
origin discrimination, disability discrimination, and
retaliation claims under the Pennsylvania Human Relations Act
(PHRA). Id. at ¶¶ 126-32. Finally, in
Count V, Ms. Shklyar alleges a violation of the Fourteenth
Amendment's Equal Protection Clause, pursuant to 42.
U.S.C. § 1983. Id. at ¶¶ 133-47. The
City's partial Motion to Dismiss challenges the
sufficiency of Counts II, III, and V, as well as the
retaliation claims under Count IV. (ECF No. 16).
Standard of Review
accordance with Federal Rules of Civil Procedure, a complaint
must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). A pleading may be dismissed for failure
to state a claim upon which relief may be granted.
Fed.R.Civ.P. 12(b)(6). To survive such a motion to dismiss,
the short and plain statement of the claim must contain
sufficient factual allegations "to raise a right of
relief above the speculative level." Bell Atl. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, to state a
claim, the complaint must contain enough factual matter,
taken as true, to show that the claim is plausible.
Id. at 556. Stated differently, a claim is facially
plausible when the pleading contains sufficient facts to draw
a reasonable inference that the defendant is liable for the
conduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The Supreme Court clarified that this
plausibility standard should not be conflated with a higher
probability standard. Id.
reviewing court must undertake a three-step analysis to
determine if a complaint will survive a motion to dismiss.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016). First, the court must identify the elements
necessary to state the claim. Id. Second, it must
ignore pure legal conclusions, and it need not accept
"unsupported conclusions and unwarranted
inferences." Id; Morrow v. Balaski, 719 F.3d
160, 165 (3d Cir. 2013). Finally, with the well-pleaded facts
remaining, it must "determine whether they plausibly
give rise to an entitlement to relief."
Connelly, 809 F.3d at 787 (citing Iqbal,
556 U.S. at 676). The plausibility of the well-pleaded facts
is judged using the court's "judicial experience and
common sense." Iqbal, 556 U.S. at 679.
City seeks dismissal of Counts II, III, and V, as well as
part of Count IV. While the City views each of the incidents
alleged in the Amended Complaint in an isolated manner, Ms.
Shklyar argues that the incidents should be viewed
holistically, as interrelated events. Accordingly, the Court
will analyze the claims in what the Court understands to be
the chronological order of events, beginning with the Title
VII retaliation claim, then proceeding on to the ADA
discrimination and ADA retaliation claims. Finally, the Court
will address the § 1983 and PHRA claims.
Title VII retaliation claim
City does not challenge the sufficiency of Ms. Shklyar's
Title VII claim in Count I, but moves to dismiss Ms.
Shklyar's Title VII retaliation claim, found in Count III
of the Amended Complaint. Title VII states that it is
unlawful for an employer "to fail or refuse to hire or
to discharge any individual, or otherwise discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges or employment, because of
such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1). Title VII also
prohibits an employer from discriminating against an employee
who has opposed an employer's discriminatory conduct or
"has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or
hearing" related to an employer's discriminatory
conduct. 42 U.S.C. § 2000e-3(a). To establish a prima
facie case for Title VII retaliation, a plaintiff must show
that (1) she engaged in conduct protected by Title VII; (2)
her employer took adverse action against her; and (3) a
causal link existed between her protected conduct and the
employer's adverse action. Connelly v. Lane Const.
Corp., 809 F.3d 780, 789 (3d Cir. 2016); Moore v.
City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
City does not dispute that Ms. Shklyar's complaint to
then-chief of staff Kevin Acklin constitutes protected
conduct under Title VII. Rather, the City moves to dismiss
this claim on the basis that Ms. Shklyar failed to show she
engaged in protected conduct before the alleged adverse
employment action, that is, her termination in December 2017,
occurred. (ECF No. 17, at 9). To the contrary, Ms. Shklyar
alleges that the City retaliated against her through several
adverse employment actions: the December 2017 termination,
her placement in a warehouse position, and the February 2018
termination. (ECF No. 12, at ¶¶ 115, 116, 118).
This dispute between the parties raises three issues: first,
whether there is a causal connection between the protected
conduct- Ms. Shklyar's complaint to Mr. Acklin-and her
December 2017 termination from her original position; second,
whether the City's hiring of Ms. Shklyar for the
warehouse position is an adverse employment action, and if
so, whether there is a causal connection between her hire and
her complaint to Mr. Acklin; and third, whether there is a
causal connection between Ms. Shklyar's complaint to Mr.
Acklin and her February 2018 termination from the warehouse
Causal nexus between complaint to Mr. Acklin and December
Ms. Shklyar must prove that a causal link connects her
complaint to Mr. Acklin to her termination from the
Department of Innovation and Performance in December 2017. To
show the existence of a causal link, a plaintiff must plead
facts showing: "(1)an unusually suggestive
temporal proximity between the protected activity and the
alleged retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link."
Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007). Whether temporality alone is
sufficient to establish a causal nexus is largely ...